Leonard v. Garland

Decision Date21 December 1911
Citation96 N.E. 819,252 Ill. 300
PartiesLEONARD et al. v. GARLAND et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Appellate Court, Second District, on Appeal from Circuit Court, La Salle County; Richard M. Skinner, Judge.

Bill for injunction by William Leonard and others against Joseph Garland and others. From a judgment of the Appellate Court (157 Ill. App. 355), affirming an order dismissing the bill, plaintiffs bring error. Reversed and remanded.

Butters & Armstrong, for plaintiffs in error.

John Garland, D. L. Dunavan, and Charles S. Cullen, for defendants in error.

VICKERS, J.

Plaintiffs in error, who are owners of land in drainage district No. 1 of the towns of Freedom and Ophir, in La Salle county, filed their bill in the circuit court of that county October 29, 1908, against the drainage commissioners and the Northwestern Clay Manufacturing Company, for an injunction to restrain them from proceeding with the construction of a tile drain, contrary to the specifications for the work. On November 5, 1908, plaintiffs in error moved for a temporary injunction, and the hearing was set for November 14th. On that date the commissioners of the district and the manufacturing company filed their several answers. Affidavits appear to have been filed by the parties, and upon hearing the motion for a temporary injunction was denied. No further action was taken at that time, and nothing further was done at the succeeding January and March terms of court. On July 7, 1909, at the June term, defendants in error entered a motion to dismiss the bill, which was allowed, and the bill dismissed. From the order dismissing the bill, plaintiffs in error appealed to the Appellate Court for the Second District, where the decree of the circuit court was affirmed. The record has been brought here for review by writ of certiorari.

[1][2] The bill was for injunction only. Plaintiffs in error contend the motion to dismiss should be treated as a general demurrer to the bill and be denied, unless the bill shows a want of equity upon its face. Whether the court erred in refusing the preliminary injunction is not involved at this time. There is no certificate of evidence in the record, showing what facts were before the court on the hearing of the preliminary motion. Reasons may have existed which would justify the court in refusing the temporary injunction, other than a failure of the bill to show a case for equitable relief. A motion to dissolve a temporary injunction for want of equity in the bill, under the rule established in this state, operates as a demurrer to the bill, and is considered as an admission of the material allegations thereof. The decree dissolving such injunction is, in effect, a denial of the relief sought, and the bill may be at once dismissed, and the action of the court reviewed on error or appeal. Titus v. Mabee, 25 Ill. 232;Shaw v. Hill, 67 Ill. 455;Smith v. Kochersperger, 173 Ill. 201, 50 N. E. 187;Weaver v. Poyer, 70 Ill. 567;Heinroth v. Kochersperger, 173 Ill. 205, 50 N. E. 171. The same rule applies when the injunction is the only relief sought, and the motion to dissolve is heard upon bill, answer, and affidavits. In such case the dissolution of the injunction may be treated as a final disposition of the cause, from which an appeal will lie. High on Injunctions, § 1706; Prout v. Lomer, 79 Ill. 331;American Live Stock Commission Co. v. Chicago Live Stock Exchange, 143 Ill. 210, 32 N. E. 274,18 L. R. A. 190, 36 Am. St Rep. 385. The practice is similar, and is followed with like results, where a court denies a motion for a preliminary injunction on a bill filed only for injunctional relief, where there is no equity in the bill, and it is apparent that it cannot be made good by amendments. Thomas v. Adams, 30 Ill. 37;Vieley v. Thompson, 44 Ill. 9;Hummert v. Schwab, 54 Ill. 142;Brockway v. Rowley, 66 Ill. 99;Grimes v. Grimes, 143 Ill. 550, 32 N. E. 847;Canal Com'rs v. Village of East Peoria, 179 Ill. 214, 53 N. E. 633;Leonard v. Arnold, 244 Ill. 429, 91 N. E. 534. It is error to dismiss a bill which states a good cause for equitable relief on the mere motion of the opposite party, unless the complainant has been guilty of inexcusable delay in prosecuting the suit. The power of a court to dismiss a suit for failure to prosecute it with due diligence, where no sufficient it with presented, exists independently of statute. 14 Cyc. 444; Sanitary District of Chicago v. Chapin, 226 Ill. 499, 80 N. E. 1017.

[3] The bill in this case states a good cause of action. It shows by proper averments that the drainage commissioners had fraudulently conspired with the Northwestern Clay Manufacturing...

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13 cases
  • State ex rel. State Highway Com'n v. Curtis
    • United States
    • United States State Supreme Court of Missouri
    • 13 Junio 1949
    ...... matters. The only remedy is in the hands of the voters to. change the Constitution or select more competent agents. Leonard v. Garland, 190 Ill.App. 216, 96 N.E. 819;. Board of Permanent Road Commissioners v. Johnson,. 231 S.W. 859. (7) Courts may, under certain ......
  • State ex rel. State Highway Comm. v. Curtis
    • United States
    • United States State Supreme Court of Missouri
    • 13 Junio 1949
    ...remedy is in the hands of the voters to change the Constitution or select more competent agents. Leonard v. Garland, 190 Ill. App. 216, 96 N.E. 819; Board of Permanent Road Commissioners v. Johnson, 231 S.W. 859. (7) Courts may, under certain circumstances, inquire as to whether another age......
  • City of Carbondale v. Irving
    • United States
    • United States Appellate Court of Illinois
    • 8 Febrero 1977
    ...... Leonard v. Garland, 252 Ill. 300, 96 N.E. 819; Sanitary District v. Chapin, 226 Ill. 499, 80 N.E. 1017, 9 Ann.Cas. 113. The question to be determined in ......
  • Bejda v. SGL Industries, Inc.
    • United States
    • Supreme Court of Illinois
    • 15 Septiembre 1980
    ...... A plaintiff's failure to take any action as ordered by the court evidences want of prosecution by that party (Leonard v. Garland (1911), 252 Ill. 300, 303, 96 N.E. 819), and as the court said in Epley v. Epley (1928), 328 Ill. 582, 585, 160 N.E. 113, 114; "The trial ......
  • Request a trial to view additional results

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